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Criminal Practice – Weapon Possession – Multiple Days & Locations – Recent Possession Doctrine

State v. Lee (Lawyers Weekly No. 11-07-0738, 14 pp.) (Sanford L. Steelman Jr., J.) Appealed from Wayne County Superior Court. (Marvin K. Blount III, J.) N.C. App. Click here for the full-text opinion.

Holding: Even though only one weapon was involved, defendant used it in nine different locations on 10 different days over the course of a month. Because each possession of the weapon was separate in time and location, the trial court did not err in denying defendant’s motion to dismiss the multiple weapons possession charges.

We find no error in defendant’s convictions of 10 counts of armed robbery, seven counts of possession of a weapon of mass death and destruction, and 10 counts of possession of a firearm by a felon.

A potential juror mentioned defendant’s record and having dealt with him in district court. Where defendant did not raise any objection before the trial court, and where plain error review is not available for a trial court’s failure to declare a mistrial on its own motion, the issue of whether the trial court erred by not declaring a mistrial is not properly before this court. Even if defendant had properly preserved this issue, he could not show prejudice because his prior felony conviction was introduced into evidence during the trial.

The state was entitled to a jury instruction on the doctrine of recent possession. Although the cigarettes stolen from the convenience stores were not unique items, the state presented sufficient evidence that the cigarettes found in defendant’s possession were the same as those stolen from the convenience stores.

First, the quantity and packaging of the cigarettes found in the duffel bag on the front porch of the residence where defendant was apprehended were the same as those stolen in the final convenience store robbery. Testimony of the clerk who was working at the Kangaroo store on Berkeley Boulevard, where the final armed robbery took place on April 24, 2008, established that the robber took two bags “packed to the bursting point” with Newport cigarettes. Another Kangaroo store clerk testified that the bags in which the cigarettes were found by the police were exactly the same as the bags used at all Kangaroo stores.

The jury also had the opportunity to compare the bags of cigarettes taken at the time of the robbery with the bags found by the police, because the state introduced still photographs from a surveillance camera at the Kangaroo store that showed defendant with the bags of cigarettes.

Second, the cigarettes were identifiable because they were found with items directly connected to the robbery. The duffel bag in which the cigarettes were found also contained a sawed-off shotgun, a hooded woodland camouflage jacket, a gray hoody, and black knit gloves. These items matched descriptions of the robber’s weapon and clothing.

Despite the fact that the stolen goods were not unique, the state produced sufficient circumstantial evidence so that the jury could have concluded that the cigarettes found in the duffel bag were the same cigarettes that had been stolen from the Berkeley Boulevard Kangaroo store on April 24, 2008.

Defendant argues that he did not have exclusive possession of the Newport cigarettes found by the police. Although defendant did not have actual possession of the duffel bag, or the cigarettes inside it, when they were discovered and did not have exclusive control over the premises on which the cigarettes were found, the state presented evidence from which the jury could find that defendant had constructive possession of the cigarettes.

Defendant’s ex-girlfriend identified the duffel bag in question as belonging to defendant. Moreover, defendant’s DNA was found on two of the other items found in the bag, and his ex-girlfriend identified the camouflage jacket and gloves found in the bag as belonging to defendant.

Other items found in the bag were also connected to the robbery by witness testimony identifying the items as the same as or similar to those used by the robber. This circumstantial evidence was sufficient for a reasonable jury to conclude that defendant had constructive possession of the Newport cigarettes found in the duffel bag.

Because there was sufficient evidence of defendant’s recent possession of stolen property, the trial court did not err in instructing the jury on the doctrine of recent possession.

No error.


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